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26 Jan 2009 : Column GC1
Grand Committee
Monday, 26 January 2009.
Local Democracy, Economic Development and Construction Bill [HL]
Committee (3rd Day)
3.30 pm
The Deputy Chairman of Committees (Baroness Harris of Richmond): If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.
Clause 5 : Provision of information
Amendments 63 and 64 not moved.
65: Clause 5, page 5, line 9, at end insert—
“( ) On request from the principal local authority, the bodies mentioned in sections 2 and 3 have a duty to provide to that authority the information necessary to allow the authority to comply with the duties in those sections.
( ) Such information shall be provided within a period of three months from the date of the request.”
Lord Greaves: In moving Amendment 65, I shall also speak to my Amendment 66 and to Clause 6 stand part. My noble friend Lady Hamwee has two or three amendments in the group. I am sure that we are all delighted to see her back; the rest of our entourage certainly is. This group of amendments relates to the duties on connected authorities to promote greater understanding of local democracy and to provide information on the guidance that the Bill makes provision for the Secretary of State to provide to principal local authorities in connection with those duties.
Amendment 65 would place a duty on connected authorities to provide the necessary information. Clause 5(3) says that the Secretary of State may impose,
My amendment says that this should be a duty and that the Bill should state this. It also states that the duty should require the connected authorities to provide information within three months. Amendment 66, which is consequential on Amendment 65, would provide the Secretary of State with the power to impose other requirements as per the Bill.
Many of us doubt whether the system will work because it will involve so many different connected authorities relating to the principal local authority. However, if it is to work, it is vital that this information should be provided. If it is not provided, the system simply will not work and it will be a waste of everyone’s time. It therefore seems fairly obvious that the requirement
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My noble friend has tabled an amendment to Clause 6 on the guidance. Given the kind of heavy guidance that will be provided under this provision—from what Ministers have said in debates on previous amendments—the clause is not necessary. The detail set out in the Bill is already quite prescriptive and, given the general requirement and duty on the principal local authority to do what is set out in the Bill, and given the parallel duty on connected authorities to provide information to the principal local authority, they can simply be left to get on with it. One hesitates to fear how much national guidance, and how much detail, there will be. Such guidance is simply not necessary and Clause 6 ought to be removed. The Government should stop trying to micromanage everything from the centre. I beg to move.
Baroness Hamwee: Before I speak to my amendments in this group, I should like to thank noble Lords for their kind messages last week—sometimes direct and sometimes through Hansard. As this is the first time that I have spoken at this stage of the Bill, I should declare a number of interests. I am one of the co-presidents of London Councils. Are we co-presidents or joint presidents?
Lord Graham of Edmonton: Joint.
Baroness Hamwee: I am very happy to be joint with the noble Lords, Lord Graham of Edmonton and Lord Jenkin of Roding. I was a member of the London Borough of Richmond upon Thames for 20 years, a member of the Greater London Authority for eight years, although it felt like 20 years, and I am a member of the advisory board of the Centre for Public Scrutiny. Those various positions have all informed my approach to the Bill.
I do not disagree with my noble friend in his observations on these two clauses, particularly his comment about central government micromanaging with guidance. My amendments are milder but were tabled in the same spirit. Amendment 76 would take out Clause 6(4), which says:
“A principal local authority must ... have regard to ... guidance”.
I accept that the amendment is not particularly sensible, as I suppose that, if there is to be guidance, an authority either has to have regard to it or has to be bound by it; of the two, I would rather that it simply had to have regard to it. We all know that, in the real world, cash tends to follow—
Baroness Hamwee: Perhaps that is not the best phrase to use today. Funding from central government to local authorities tends to be related to, whether explicitly or unadmittedly, guidance and the direction that central government wants local government to follow. Amendment 76 was tabled in that light.
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My Amendment 74 would provide that, as well as guidance to local authorities, guidance should be provided to the bodies that are mentioned in Clauses 2, 3 and 4 about how they should contribute to the local authorities’ discharging of their duties. That is perhaps a more convoluted way of saying what my noble friend says with Amendment 65. I read Hansard from last week and I have to say that I am as puzzled as other noble Lords from this side of the Committee clearly were about what the bodies referred to in Clauses 2, 3 and 4 might be required to do that they are not already doing. The noble Baroness, Lady Warsi, rightly made a good deal of that point. What more can local authorities do to promote understanding of those other bodies? However, if there is to be a duty, those bodies need to be brought into the jigsaw to give the information.
Amendment 75 would provide that, before giving guidance, the Secretary of State or Welsh Ministers should consult not only the principal local authorities but also the connected authorities. One hopes that that would not need saying, but let me say it now so that, if we do not get anything in the Bill, we will at least get something in Hansard, which would be reassuring.
Baroness Warsi: I welcome back the noble Baroness, Lady Hamwee. She will have noted in Hansard our good wishes and the many references to her but also the fact that we have progressed at a very gentle pace.
These amendments draw attention to a loophole in relation to the provision of information under Clause 5. The clause suspends the duty for local authorities to promote understanding and information if the necessary information has not been made available by the relevant authority that holds that information. If a secondary authority is stubborn or disorganised for any reason, or for any other reason fails to provide the requested information, the duty on the principal local authority simply does not apply. Yet we were told in no uncertain terms by the Minister in our first Committee session that it was vital to have a duty, that we needed a duty and that a less stringent requirement, such as “have regard to”, would not be sufficient. Anything less than a duty would, we were told, be destructive. If this is so, are we to presume that in circumstances where Clause 5 comes into effect there will be a similarly destructive effect on the operation of the Bill?
Do not get me wrong: I understand the need for Clause 5. However, I am not sure that it sits easily with the Government’s protestations that the duty on local authorities is essential. None the less, by drawing in the connected authorities and placing a duty on them to provide information to the principal authority—as the amendments of the noble Lord, Lord Greaves, would achieve—we may end up with a series of cross duties. Does the Minister regard that as an appropriate solution to the loophole in relation to the primary duty under Clause 5, or does she believe that it would begin to create an onerous burden on authorities, which she says she is keen to avoid?
I am minded to look more enthusiastically on the amendments tabled by the noble Baroness, Lady Hamwee, which would place the onus on national authorities to
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I agree that Clause 6 should not stand part of the Bill. Clause 6 gives carte blanche for the appropriate national authority to start meddling. We might ask at this point who the appropriate national authority is. Will it be the Secretary of State? If so, the Executive are reserving to themselves the right to heap instructions on local authorities to which they must have regard. I am not convinced that Clause 6, when considered on top of the duties in Clauses 1 to 4, sits easily with what the Minister told the Committee during our first session, when she denied that the imposition of a duty in this part would be onerous. Having reread her words in Hansard, I note that she was careful not to say explicitly that she would ensure that the duty would be as light a burden on local authorities as possible. However, she said that she did not consider the duty onerous and that the benefit of having it was that it was “not overly prescriptive”. The Committee is aware that I do not agree with that assessment.
The Government’s claims are further undermined by Clause 6, which provides an open door for the Secretary of State, or whatever national authority it may be, to be as prescriptive as he or she likes. Local authorities will have to have regard to all that guidance. We do not—indeed, cannot—know what sort of guidance will be issued in the future, yet we are being asked to accept that the existing duties, plus future guidance, will not be overly prescriptive, a burden on local authorities or onerous. These Benches have trouble accepting that claim.
3.45 pm
Lord Patel of Bradford: I welcome back the noble Baroness, Lady Hamwee. It is good to have her back posing challenging questions.
This group of amendments comprises two specific parts. The first seeks to impose a duty on connected authorities and the second focuses on the need to have regard to statutory guidance. In the former, the noble Lord, Lord Greaves, wants to ensure that all those on the list of connected authorities will provide the requested information to the principal authorities by placing a statutory duty on them to do so, with a time limit of three months from the request. An additional point is that if at a later stage the noble Lord brings back the substance of Amendment 51, which we considered last week, this would include any bodies added to the list of connected authorities by the principal local authority.
There is little, if any, evidence that, where principal authorities are currently engaged in such activities, they have encountered resistance from the relevant organisations in providing them with the information that they seek. In discussion with representatives of these organisations prior to the introduction of the Bill, there was a general readiness to provide such information. Of course we cannot assume that all the organisations asked by principal authorities under their duty to promote democracy to provide the necessary information will invariably provide it, but the Bill
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We would argue that Amendments 74 and 75, tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Tope, to issue guidance on how to comply with this duty and to consult on that guidance, are also not needed. We would not seek to issue guidance where no duty exists. However, if local authorities and connected authorities want to develop their own best practice advice to guide local authorities and connected authorities, that is up to them. We would be happy to support this and help in whatever way we can. I should add, in response to the question put by the noble Baroness, that we would consult all stakeholders when producing any guidance, which would certainly include the connected authorities.
The noble Lord, Lord Greaves, proposes in Amendment 66 that the appropriate national authority should be able to impose requirements other than those relating to the provision of the relevant information covered in the Bill. However, in the context of the duty to promote democracy, it is not clear what other requirements we would want the appropriate national authority to have order-making powers to impose. Accordingly, this amendment would not meet any identifiable need.
I move to the question of whether councils should have regard to statutory guidance. Under Clause 6(1), the appropriate national authority, which would be the Secretary of State in England and Welsh Ministers in Wales, may give guidance to principal local authorities in relation to the discharge of their duties under Chapter 1. The guidance must be published and would apply to all local authorities in England, including county and district councils, London borough councils and the City of London. Wales will produce its own statutory guidance. The clause allows flexibility to produce guidance, which may apply generally or to one or more particular principal local authorities, and which must be consulted on.
Amendment 76 would remove the requirement under Clause 6(4) for principal local authorities to have regard to any guidance issued under subsection (1). To “have regard to” guidance does not mean “slavishly adhere to” it, in that the body taking the decision must genuinely have regard to the guidance, and certainly cannot ignore it. It may depart from it, but only if it has good reasons for doing so. The decision to be made remains its decision, to be taken in view of all the relevant circumstances. Moreover, as the noble Baroness, Lady Hamwee, acknowledged, the form of words used does not actually make a huge difference to whether the clause contains express provision for the principal local authorities to have regard to the guidance. Because the Secretary of State has the power to issue guidance to principal local authorities as to how to fulfil their duties, they would in any event be acting unlawfully if they failed to have regard to it.
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It is important that these amendments have provoked a debate on the principle behind the provision of guidance, specifically on the point that councils should be able to decide for themselves what actions should be taken to fulfil their duties relating to the promotion of democracy. In the Bill, we have sought to achieve a balance between enabling councils to be clear about what they are required to do and overloading legislation with detail that is too prescriptive. We want to be able to provide help to councils in their new role and to make it easy for them to understand what is expected and to get on with taking that work forward. Traditionally, this has been done through guidance from the Government—incidentally, such guidance is often asked for by councils themselves—which assists councils as they begin to set themselves up for a new role. There is nothing sinister in that and it is certainly not unique to this legislation.
Our debates so far have absolutely proved the case for statutory guidance in relation to the duty to promote democracy. There have been multiple occasions in these sittings when we have pledged to ensure that the aims of the legislation are made clear to councils via the guidance, in response to requests for clarity from Members of the Committee.
Statutory guidance will help to ensure consistency of approach in terms of the information being provided, but I state for the record that, in exercising the powers under Clause 6, we envisage that the guidance issued by the Secretary of State will strike the appropriate balance between, on one hand, ensuring that the response by local authorities to the proposed duty is robust and consistent across England and, on the other, providing for local flexibility to take account of local circumstances. We do not intend to tell local authorities exactly what they must do. We will not be saying that they must deliver a leaflet to every property every year, or that they must arrange meetings with particular community groups on a regular basis. We intend the guidance to clarify the responsibilities that the clauses place on the different players and to suggest—and I mean suggest—some useful ways in which that might be done.
Statutory guidance could also demonstrate links between these duties and other legislation, such as the code of recommended practice on local authority publicity, which we discussed last week, and the Electoral Administration Act 2006. Statutory guidance would under Clause 6(3) be subject to public consultation, which we will undertake with the relevant people and bodies before it is finalised. In fact, we are already talking to the LGA about how it can be involved in its production. I therefore urge the noble Lord to withdraw his amendment.
Statutory guidance could cover a number of areas. I could go into some detail about each of them, but for the sake of time I will just briefly highlight the headline issues and, unless requested to do so, will not put lots of meat on the bones. We will be looking at how duties relating to the promotion of democracy link to other legislation; guidance on what information should be made available and what is meant by promoting understanding; the councillors’ role and the support and advice available to them; and what information connected authorities should provide to local authorities
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We made several specific pledges last week on subjects where Members of the Committee felt that clarification was needed. Statutory guidance will ensure that principal local authorities understand their responsibilities in those areas in promoting democracy. It will also facilitate consistency in the type of information provided to local people.
It may help the Committee to know our plans for producing the guidance and the consultation that will be involved. Subject to parliamentary approval, the proposals will be subject to further development and discussion with partners—all partners. The legislation will require us to consult the principal local authorities to which guidance is given, but we will of course ensure that all relevant bodies are consulted: principally, local government representatives such as the LGA family, those representing the parish sector and representatives of the connected authorities and of the roles covered in Clauses 3 and 4. The views of other partners, such as the community sector and representatives of those with specific accessibility requirements, who were mentioned, will also be sought.
Subject to parliamentary approval, we will formally consult on the draft guidance after Royal Assent, with a view to publishing the final guidance in 2010. To encourage a strong and innovative response to the duty, we also plan to encourage and support the local government sector to produce and promote best practice advice. We anticipate that that would include examples of current and future good practice on promoting democracy, advice on how best to reach and involve underrepresented groups, how the duties to promote democratic understanding can be embedded in all local authority activities and how councils can work most effectively with partner organisations. This will work in harmony with statutory guidance to ensure that councils have a clear idea of how the legislation works, what the requirements are and what their future responsibilities will be. I am of course aware that noble Lords have concerns about statutory guidance, but I am sure that they would not wish to see councils being unclear about how best to meet these duties and where their responsibilities lie.
Baroness Maddock: The Minister has explained carefully how he sees the balance between guidance for and prescription to local authorities. However, I reiterate what I have said before, which is from the experience of being a local councillor some years ago and much more recently: I hope that the Government can really listen and try to understand that, the more prescription there is about what councils can and cannot do, the less likely people are to be attracted to coming into local government.
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It is quite onerous these days to be a councillor—there are more duties, more things to do and more coming from the Government to keep abreast of. People are not willing to give up their time if they cannot be local leaders and lead as they think things should be led in their community, when all the time they are being asked to do things that are being sent down from the top. I hear what the Minister has said, but this is a serious issue. One of the reasons why people are not coming forward is that it is becoming too onerous and they cannot use their own imagination. As my noble friend Lord Greaves said last week, that stifles innovation in local government.
On the positive side, I was pleased to hear that the Government are going to use the Local Government Association to try to spread best practice. That is what we need to do, along with encouraging innovation, rather than telling people what to do. I am still concerned about that aspect of the Bill.
Baroness Hamwee: I, too, noted the reference to best practice advice. I will try not to anticipate what my noble friend might say, but I reiterate that best practice advice will be much more helpful than guidance. When I read last week’s Hansard, it seemed to be proved not that guidance was needed with regard to the duty but that the duty was not needed and was wrongly conceived.
The Minister mentioned that local authorities might produce guidance to connected authorities and Clause 3 and 4 bodies in helping them to work through how to fulfil the duty. He also said that local authorities can decide for themselves how to fulfil the duty. I have difficulty with that, given the oddness of the duty, but if anything comes out of this it will be a focus on best practice and on local authorities working together to produce guidance—call it that or call it something else—for those various bodies.
3.59 pm
Sitting suspended for a Division in the House.
4.08 pm
Baroness Hamwee: I have one final point. The noble Lord referred to the topics that might be covered in guidance. Like other noble Lords, I have had the benefit of seeing the policy document that lists the issues that might be covered. For me—and I suspect for others—what will be interesting is not the headings but the content, because that is what is puzzling us.
Lord Greaves: I thank the Minister for his response. I have a small point. He wondered why Amendment 66 had been tabled and thought that I was trying to extend the powers of the Secretary of State. That is not so; it is there simply because it would restrict the scope of the requirements that the Secretary of State might impose through the order. My intention was to put two requirements—that information had to be provided and that it had to be done within three months—in the Bill, with the rest of the requirements that could be imposed as the Bill stands still in there. That is a detail.
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